FLEXIBLE IRAC: A BEST PRACTICES GUIDE - LWI · PDF file2015 Flexible IRAC 235 As legal writing scholars have struggled with how to advise stu-dents to apply IRAC in more complex analyses,

FLEXIBLE IRAC: A BEST PRACTICES GUIDE

Tracy Turner

I. INTRODUCTION

Existing scholarship on the proper organization of a legal

analysis is dominated by the IRAC paradigm and its numerous

spin-offs.1 IRAC stands for Issue, Rule (i.e., discussion of the

relevant law on an issue), Application (i.e., application of the law

to the case at hand), and Conclusion.2 The IRAC paradigm is

based on an adaptation of deductive syllogism to legal reasoning:

Major Premise: All men are mortal. (The “R” in IRAC)

Minor Premise: Socrates is a man. (The “A” in IRAC)

Conclusion: Therefore, Socrates is mortal.3

Paradigms like IRAC are helpful tools for novice legal writers

who are otherwise faced with a seemingly impossible task:

identifying and imitating quality in a field of writing that is not

blessed with consistency in either its quality or its form.4 On the

other hand, some scholars have noted significant drawbacks in

. © 2015, Tracy Turner. All rights reserved. Tracy Turner is the Director of the

Legal Analysis, Writing, and Skills Program at Southwestern Law School. Thank you to

Michelle Keshishi, Kevin Miller, and Schyler Silverman for their help on this Article and

to Austen Parrish for his thoughtful comments.

1. See Tracy Turner, Finding Consensus in Legal Writing Discourse Regarding Or-

ganizational Structure: A Review and Analysis of the Use of IRAC and Its Progenies, 9

LEGAL COMM. & RHETORIC: JALWD 351 (2012) (discussing various alternative acronyms

proposed by scholars and concluding that none of the alternative acronyms depart from the

rules-first core of IRAC, which still dominates the discourse).

2. Many scholars advise legal writers to start with a conclusion rather than an issue

statement, especially in persuasive writing. See id. at 359 (surveying the literature on

whether legal writing should start with an issue or conclusion in objective writing). For

ease of reference, this Article will treat “issue” as synonymous with “thesis” or “conclusion”

and will use the IRAC paradigm as an umbrella term encompassing the numerous related

paradigms such as CRAC, CREAC, TRAC, etc. See id. at 357 (listing all of the various

acronyms that have been generated by legal writing professors).

3. E.g. CHARLES R. CALLEROS, LEGAL METHOD AND LEGAL WRITING 82 (7th ed. 2014);

REID RAMBO & LEANNE J. PFLAUM, LEGAL WRITING BY DESIGN 20–21 (2d ed. 2013).

4. Turner, supra note 1, at 351–52 n.2 (listing forty published articles that have

discussed the benefits of paradigms).

234 The Journal of the Legal Writing Institute Vol. 20

overemphasizing paradigms like IRAC in legal writing courses,5

and a smaller number have suggested that practitioners do not

write in a rigid IRAC structure.6 This Article aims to reconcile

some of the conflict by illustrating that IRAC does not need to be

rigid and can be taught as a flexible concept that is relevant to

practice.

IRAC needs to be flexible because few legal questions can be

evaluated by a single rule paragraph and a single application

paragraph. Legal writers must often decide how to sequence

multiple rule paragraphs and multiple application paragraphs.7

5. See, e.g., Marion W. Benfield, Jr., IRAC—An Undesirable Formula, 10 SECOND

DRAFT (newsltr. of the Legal Writing Inst.), Nov. 1995, at 17 (criticizing IRAC for “encour-

age[ing] awkward, simplistic writing”); Soma R. Kedia, Redirecting the Scope of First-Year

Writing Courses: Toward a New Paradigm of Teaching Legal Writing, 87 U. DET. MERCY L.

REV. 147, 170–75 (2010) (arguing that IRAC fails to teach flexibility and creativity); Allen

Mendenhall, The Importance of Being Earnest: A Serious Proposal to Modify Legal Re-

search and Writing Departments, 2007 W. VA. LAW., Sept./Oct. 2007, at 32, 32–33 (conclud-

ing that the use of a structure like IRAC inhibits writers who feel they need to “fit” their

thoughts into the formula); Nancy P. Spyke, Thoughts on the Use of IRAC in Teaching

Analysis, 10 SECOND DRAFT, Nov. 1995, at 16 (arguing that IRAC should not be taught as a

method of organizing legal writing because it lacks sophistication); Christine M. Venter,

Analyze This: Using Taxonomies to “Scaffold” Students’ Legal Thinking and Writing Skills,

57 MERCER L. REV. 621, 624–26 (2006) (arguing that paradigms are too limited to allow

analytical skills to develop); Amy Vorenberg & Margaret Sova McCabe, Practice Writing:

Responding to the Needs of the Bench and Bar in First-Year Writing Programs, 2 PHOENIX

L. REV. 1, 25–27 (2009) (urging de-emphasis of paradigms and more discussions with stu-

dents about “what analytical content the legal reader needs and the best way to provide

it”); Manning Warren, IRAC Response, 10 SECOND DRAFT, Nov. 1995, at 19 (concluding

that IRAC erroneously encourages students “to [fit] printed facts into [a] form-fitted legal

construct” rather than to “think about what is really going on” in the case); see also Dianne

Kraft, CREAC in the Real World, 63 CLEVELAND ST. L. REV. ___ (forthcoming 2015)

(manuscript at 7 nn.31–36), available at http://papers.ssrn.com/sol3/papers.cfm? ab-

stract_id=2534359## (summarizing criticisms of IRAC).

6. Benfield, supra note 5, at 17 (noting that he reviewed two Cardozo opinions that

both mix facts, ideas, conclusions, and common sense with discussion of the law); Voren-

berg & McCabe, supra note 5, at 17–19 (reporting that of three briefs the authors asked

seven judges to rate, an integrated brief received a higher average score and that “several

judges” commented in interviews that “where a particular legal issue is settled and is

frequently before the court,” there is no need for a separate explanation of the law before

the analysis of the facts of the particular case); see also Kraft, supra note 5, at 8 nn.37–38

(summarizing commentary on the lack of a focus on paradigms in practice).

7. Although terminology varies in the literature, this Article will use the term “rule

paragraphs” to refer to paragraphs that discuss the law and “application paragraphs” to

refer to paragraphs that apply the law to the facts of the case at hand. The Article does

not differentiate between rule paragraphs that provide an overview of the rules (some-

times referred to in the literature as rule statement or rule summary) and those that pro-

vide proof or explanation of a specific point of law (sometimes referred to in the literature

as rule proof or rule explanation). Its samples include only rule proof/rule explanation

paragraphs. The inclusion of rule statement as part of IRAC is discussed in TRACY

TURNER, LEGAL WRITING FROM THE GROUND UP 113, 116–17 (2015). For additional re-

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2534359

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2534359

2015 Flexible IRAC 235

As legal writing scholars have struggled with how to advise stu-

dents to apply IRAC in more complex analyses, variations in

IRAC have emerged in legal writing textbooks. Although scholars

appear to have a consensus that separate issues and elements

should have separate IRAC sequences,8 the organization of rule

paragraphs and application paragraphs within a single IRAC

sequence is far less settled. For example, while some scholars

urge that rule paragraphs within a single IRAC sequence be kept

together and precede the application of the law (an IRRRAAAC9

structure),10 others advise writers to alternate between rule para-

graphs and application paragraphs (an IRARARAC structure).11

Unfortunately, these necessary variations of IRAC are often

isolated from one another in the literature. As a result, legal

writing professors may latch onto only one iteration of IRAC

rather than teaching it as a flexible concept.

sources on rule statement, see Turner, supra note 1, at 360 n.40.

8. MARY BETH BEAZLEY, A PRACTICAL GUIDE TO APPELLATE ADVOCACY 89 (4th ed.

2014); CALLEROS, supra note 3, at 261–62; BRADLEY G. CLARY & PAMELA LYSAGHT,

SUCCESSFUL LEGAL ANALYSIS AND WRITING: THE FUNDAMENTALS 93–94 (3d ed., West

2010); LINDA H. EDWARDS, LEGAL WRITING: PROCESS, ANALYSIS, AND ORGANIZATION 132–

33 (6th ed. 2014); MICHAEL D. MURRAY & CHRISTY HALLAM DESANCTIS, ADVANCED LEGAL

WRITING AND ORAL ADVOCACY: TRIALS, APPEALS, AND MOOT COURT 232–35, 558–59 (2d ed.

2014); RICHARD K. NEUMANN, JR., LEGAL REASONING AND LEGAL WRITING 163–64 (7th ed.

2013); DIANA V. PRATT, LEGAL WRITING: A SYSTEMATIC APPROACH 185–94 (5th ed. 2015);

RAMBO & PFLAUM, supra note 3, at 28; MARY BARNARD RAY, THE BASICS OF LEGAL

WRITING 77, 80 (rev’d 1st ed. 2008); DEBORAH A. SCHMEDEMANN & CHRISTINA L. KUNZ,

SYNTHESIS: LEGAL READING, REASONING, AND WRITING 101 (4th ed. 2014); HELENE S.

SHAPO ET AL., WRITING AND ANALYSIS IN THE LAW 113, 135–37 (6th ed. 2013); ROBIN

WELLFORD SLOCUM, LEGAL REASONING, WRITING, AND OTHER LAWYERING SKILLS 161 (3d

ed. 2011); Lurene Contento, Demystifying IRAC and Its Kin: Giving Students the Basics to

Write “Like a Lawyer”, 21 SECOND DRAFT, Dec. 2006, at 8, 8–9; Christina Kunz & Deborah

Schmedemann, Our Perspective on IRAC, 10 SECOND DRAFT, Nov. 1995, at 11, 11–12.

9. This Article uses IRRRAAAC rather than IRAC because it addresses organization

of analyses that include multiple rule paragraphs and multiple application paragraphs.

For consistency, the other acronyms used in this Article will similarly assume three rule

paragraphs and three application paragraphs: IRARARAC and IRAIRAIRAC. The acro-

nyms are not meant to suggest that all analyses must have exactly three rule paragraphs

and application paragraphs.

10. EDWARDS, supra note 8, at 132–36; NEUMANN, supra note 8, at 145–48; see also

MICHAEL R. FONTHAM ET AL., PERSUASIVE WRITTEN AND ORAL ADVOCACY IN TRIAL AND

APPELLATE COURTS 20–21 (3d ed. 2013) (providing an organizational outline that keeps

rule paragraphs together); NADIA E. NEDZEL, LEGAL REASONING, RESEARCH, AND WRITING

FOR INTERNATIONAL GRADUATE STUDENTS 322–23 (3d ed. 2012) (suggesting that keeping

rule paragraphs together should be the default structure).

11. RAY, supra note 8, at 79–80; SLOCUM, supra note 8, at 208–09, 211–13. In addi-

tion, the following texts offer samples that follow an IRARARAC structure: RAMBO &

PFLAUM, supra note 3, at 541–632; SCHMEDEMANN & KUNZ, supra note 8, at 103–04;

SHAPO ET AL., supra note 8, at 147–48.


This Article seeks to free IRAC from its shackles by

synthesizing the literature to create a “best practices guide” to

IRAC. It identifies variations in IRAC using a common vocabu-

lary, explains the strategic considerations that should play a role

in selecting the right organization for a particular legal analysis,

and ultimately aims to synthesize existing scholarship on organi-

zation to provide a flexible understanding of IRAC without sacri-

ficing the usefulness of the paradigm.12

When I first began to think about writing this Article, I

expected to propose alternatives to IRAC. However, as I reviewed

briefs and textbooks in preparation for writing the Article,13 I

discovered that good legal writers continue to hold on to the core

of IRAC: syllogistic reasoning. Instead of abandoning IRAC, I

concluded that identifying its more sophisticated adaptations and

12. The Author’s textbook incorporates the synthesis discussed in this Article.

TURNER, supra note 7, at 108–50. The Oates & Enquist textbooks have taken a structured

approach to alternatives too. In The Legal Writing Handbook, the authors present multi-

ple models and templates including a “script format” model (essentially IRRRAAAC), an

“integrated model” (bears some similarity to the IRAIRAIRAC model discussed later in

this Article), and varying templates for factor-based analyses, balancing analyses, and

analyses aimed at addressing questions of first impression note LAUREL CURRIE OATES &

ANNE ENQUIST, THE LEGAL WRITING HANDBOOK: ANALYSIS, RESEARCH, AND WRITING 156–

91, 225–38, 247–62 (6th ed. 2014). In Just Briefs, the authors present three different types

of reasoning that can be used in crafting an effective argument: deductive (essentially

IRRRAAAC), inductive (same as the “integrated model” from the Handbook) and “facts

first” (an approach that seems to be similar to the narrative adaptation of IRAC discussed

later in this Article). LAUREL CURRIE OATES ET AL., JUST BRIEFS 35–38 (3d ed. 2013).

13. I reviewed sample memoranda and briefs in textbooks that did not teach a strict

IRRRAAAC structure: BEAZLEY, supra note 8; CALLEROS, supra note 3; VEDA R. CHARROW

ET AL., CLEAR AND EFFECTIVE LEGAL WRITING (5th ed. 2013); CLARY & LYSAGHT, supra

note 8; JOHN C. DERNBACH ET AL., A PRACTICAL GUIDE TO LEGAL WRITING & LEGAL

METHOD (5th ed. 2013); MURRAY & DESANCTIS, supra note 8; NEDZEL, supra note 10;

OATES & ENQUIST, supra note 12; AUSTEN L. PARRISH & DENNIS T. YOKOYAMA, EFFECTIVE

LAWYERING: A CHECKLIST APPROACH TO LEGAL WRITING & ORAL ARGUMENT (2d ed. 2012);

PRATT, supra note 8; RAMBO & PFLAUM, supra note 3; RAY, supra note 8; KRISTEN KONRAD

ROBBINS-TISCIONE, RHETORIC FOR LEGAL WRITERS: THE THEORY AND PRACTICE OF

ANALYSIS AND PERSUASION 244 (2009); SCHMEDEMANN & KUNZ, supra note 8; NANCY L.

SCHULTZ & LOUIS J. SIRICO, JR., LEGAL WRITING AND OTHER LAWYERING SKILLS (6th ed.

2014); SHAPO ET AL., supra note 8; SLOCUM, supra note 8. I also reviewed several briefs I

had written as a practicing lawyer before I had ever heard of IRAC, additional briefs writ-

ten by lawyers whose writing I admired, and thirty-seven briefs I obtained through

Westlaw and Lexis. I chose the Westlaw and Lexis briefs by searching federal court data-

bases for opinions that had complimented the briefs submitted by the parties and then

accessing the complimented briefs if they were available online. The thirty-seven briefs

were of varying quality. Some were truly good; others were not. Therefore, I do not claim

that this Article is a rigorous empirical study of IRAC variations. Instead, I used the

briefs to help formulate my thoughts about the modifications and strategies discussed in

the Article.


nuances was the better approach. This Article thus identifies and

illustrates the following adaptations of IRAC: (1) one-sequence

IRAC (IRRRAAAC); (2) alternating IRAC (IRARARAC); (3) IRAC

by paragraph (IRA-IRA-IRA-C); and (4) the IRAC sentence.14 To

enable legal writers to make intelligent organizational choices,

the Article will address the benefits and drawbacks of each

adaptation. In addition, the Article will discuss the addition of

narrative details into the IRAC structure—a common technique

in practice that is often discouraged by rigid adherence to IRAC.

The final section of the Article also demonstrates how the various

adaptations, with added narratives, can be integrated within a

single brief or memorandum. Admittedly, not every textbook

sample and court brief I reviewed fit precisely into one of these

adaptations. Instead, these adaptations represent my synthesis

of the variations in structure I observed. In addition, they

represent some judgment on my part of the quality of the samples

and briefs I reviewed. In other words, these adaptations describe

best practices used in the highest quality samples and briefs.

II. BASELINE RULES OF EFFECTIVE ORGANIZATION

Before delving into the details of alternative organizational

structures, legal writers should understand some basic rules of

effective organization. First, experts on composition have

recognized two key principles of paragraph organization:

(1) paragraphs should usually begin with a topic sentence that

states the point the paragraph will address, and (2) the body of a

paragraph should relate to the topic sentence.15 Because these

rules have been in play for nearly 150 years,16 legal writers

14. I use a sequence of three to illustrate the differences between the first three struc-

tures but not to suggest that a writer has to use this exact number. In fact, in the one-

sequence structure, the number of rule paragraphs and application paragraphs do not

need to match. For example, a one-sequence structure could look more like IRRRAC,

IRAAAC, or any other combinations. Its key attribute, as explained in the relevant section

below, is that the rule paragraphs are kept together rather than alternating between rule

paragraphs and application paragraphs.

15. ALEXANDER BAIN, ENGLISH COMPOSITION AND RHETORIC 150–52 (Scholars’ Fac-

similes & Reprints 1996) (1871) (establishing six rules of paragraph structure including

the need for topic sentences and unity of theme within a paragraph); see also Ned A.

Shearer, Alexander Bain and the Genesis of Paragraph Theory, 58 Q.J. of Speech 408, 413

(1972) (summarizing Bain’s six rules of paragraph structure).

16. See Paul C. Rodgers, Alexander Bain and the Rise of the Organic Paragraph, 51

Q.J. of Speech 399 (1965) (describing the pervasive influence of Bain’s six rules of para-

graph structure).


should strive to conform to them.17 In addition, each paragraph

should be complete: the body of the paragraph should adequately

prove the topic sentence.18 Adhering to these basic principles,

this Article does not propose any structures or provide any

samples that would encourage either (1) splitting the proof of a

topic sentence into more than one paragraph or (2) addressing

two or more points within a single paragraph without a uniting

topic sentence.

Another widely recognized principle is that legal writers

should synthesize the law rather than draft an analysis as a list

of case summaries.19 Accordingly, the organizational choices this

Article presents are not intended to encourage a case-by-case

organization rather than a rule-based organization. The samples

attempt to model case synthesis and rule-based organization un-

der each alternative structure discussed.

A. The One-Sequence IRAC (IRRRAAAC)

The one-sequence structure provides an initial statement of

the sub-issue, conclusion, or thesis followed first by a complete

discussion of the law relevant to the sub-issue (often, multiple

rule paragraphs) before the law is applied to the case at hand in

subsequent application paragraph(s).20 Finally, a wrap-up of the

17. On the use of topic sentences in legal writing, see BEAZLEY, supra note 8, at 233–

37; CALLEROS, supra note 3, at 267–68; DERNBACH ET AL., supra note 13, at 204–05;

EDWARDS, supra note 8, at 88–90; MURRAY & DESANCTIS, supra note 8, at 39; NEDZEL,

supra note 10, at 229–30; NEUMANN, supra note 8, at 187–90; OATES & ENQUIST, supra

note 12, at 563–67; RAMBO & PFLAUM, supra note 3, at 110–11; SHAPO ET AL., supra note 8,

at 139–41, 203–09.

18. JOSEPH F. TRIMMER, THE NEW WRITING WITH A PURPOSE 189, 193–95 (14th ed.

2004). I use the term “topic sentence” narrowly to mean the exact point that the particular

paragraph sets out to prove. Often several paragraphs will work together to prove a

broader point, but each has its own specific purpose.

19. CALLEROS, supra note 3, at 332–37; DERNBACH ET AL., supra note 13, at 61–68,

178–183; EDWARDS, supra note 8, at 51–53; FONTHAM ET AL., supra note 10, at 58–61;

MURRAY & DESANCTIS, supra note 8, at 132, 135–60; NEDZEL, supra note 10, at 222–23;

NEUMANN, supra note 8, at 114–16; OATES & ENQUIST, supra note 12, at 169–76; RAMBO &

PFLAUM, supra note 3, at 76–77; RAY, supra note 8, at 96–97 (discussing synthesis in the

annotations to a sample); ROBBINS-TISCIONE, supra note 13, at 139–50; SCHMEDEMANN &

KUNZ, supra note 8, at 36–42; SHAPO ET AL., supra note 8, at 78–83, 147–48; SLOCUM,

supra note 8, at 187–202; MICHAEL R. SMITH, ADVANCED LEGAL WRITING: THEORIES AND

STRATEGIES IN PERSUASIVE WRITING 38–47, 71–76 (3d ed. 2013).

20. See, e.g., BEAZLEY, supra note 8, at 359–74, 386–91; CALLEROS, supra note 3, at

255–56, 263; EDWARDS, supra note 8, at 134–36; FONTHAM ET AL., supra note 10, at 20–21;

MURRAY & DESANCTIS, supra note 8, at 568–77; NEDZEL, supra note 10, at 322–23;

NEUMANN, supra note 8, at 145–48; PRATT, supra note 8, at 185–94; SLOCUM, supra note 8,


point concludes the sequence.21 To understand this structure,

legal writers can picture a line drawn between the portion of the

analysis that discusses the law and the portion that applies the

law to the case at hand.

Sample One-Sequence IRAC22

A. The Government’s Conduct Was Not Outrageous Because It

Was Designed to Intercept Active Terrorists Rather Than

to Target Defendant for Prosecution.

The government did not single out Defendant and

pursue her conviction at all costs. To the contrary, Defend-

ant was drawn into the planned bombing by her own ter-

rorist organization.

Although courts have suggested that outrageous

conduct may be established where the government manu-

factured the crime from start to finish, e.g., United States v.

Bogart, 783 F.2d 1428, 1436 (9th Cir. 1986), courts have

declined to bar convictions even when the criminal plan

was entirely initiated and controlled by the government but

was part of a general sting operation to which the defend-

ant was drawn on his own accord. In Morgan v. Robinson,

156 F. Supp. 2d 1133, 1148 (C.D. Cal. 2001), for example,

the court upheld a conviction even though the government

initiated the crime and managed it from start to finish and

even though the defendant had not engaged in similar

crimes before. . . [full discussion omitted here].

Sting operations aimed at a preexisting criminal organ-

ization do not offend the universal sense of justice. Indeed,

they further justice because they are designed to protect

the public by catching those predisposed to commit crime.

at 208–11 .

21. CALLEROS, supra note 3, at 223; CLARY & LYSAGHT, supra note 8, at 92; EDWARDS,

supra note 8, at 132–33; NEUMANN, supra note 8, at 145.

22. This and all other samples in the Article are my own work adapted to model the

IRAC variations that I observed in the textbooks and briefs in my research.

I

R

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See United States v. Williams, 547 F.3d 1187, 1201 (9th Cir.

2008) (stating that the fake robbery set up through the

government’s sting operation should be commended rather

than condemned because it avoided harm to the public from

the real robbery defendants would have otherwise commit-

ted). Accordingly, courts are less likely to reverse a convic-

tion where the defendant’s conduct reveals she was predis-

posed to the crime. In Mitchell, . . . [full discussion omitted

here].

By contrast, the cases in which courts have reversed

convictions on due process grounds involve not sting

operations that target criminal organizations but the

targeting of a specific individual without reason to suspect

the individual is currently engaged in similar criminal ac-

tivity. See United States v. Twigg, 588 F.2d 373, 381 (3d

Cir. 1978) (holding that government violated due process

when it asked informant to reestablish contact with an

acquaintance who was not engaged in any illicit drug activ-

ity and agent thereafter “implanted the criminal design” in

the defendant’s mind and enabled him to carry it out). . . .

[full discussion omitted here]. When the government

targets a specific defendant without reason to suspect he is

engaged in criminal activity, the motive appears to be to

secure a conviction rather than to protect the public from

criminal activity. See Twigg, 588 F.2d at 381 (stating that

agent’s conduct was offensive because it “generated new

crimes by the defendant merely for the sake of pressing

criminal charges against him when . . . he was lawfully and

peacefully minding his own business”) . . . [full discussion

omitted here].

The Ninth Circuit explored the difference between a

legitimate sting operation and the illegitimate targeting of

an apparently innocent defendant in United States v. Lut-

trell, 889 F.2d 806, 813–14 (9th Cir. 1989). In Luttrell, . . .

[full discussion omitted here].

Here, Forrest’s conviction is squarely within due

process grounds for at least two reasons. First, she was

caught as the result of a general undercover investigation

R

A

R


that did not target her specifically but, instead, was aimed

more widely at her known terrorist organization. Second,

even if she had been targeted specifically, her active partic-

ipation in a known terrorist organization would be a

sufficient ground to investigate her. Morlandia did not

target Forrest and convince her to commit a crime for the

purpose of obtaining her conviction. Rather, her conviction

resulted from a general undercover operation designed to

protect the public by thwarting the terrorist activities of

her organization. The FBI set up the operation as a wide

web to catch whatever criminal conduct came its way much

like the sting operation in Morgan. Because it targeted a

known criminal operation, the FBI’s undercover operation

has a “settled place in law enforcement.” Id. Forrest

became caught in the web because of her prior involvement

in EARTH’s terrorist activities. EARTH’s leadership want-

ed Forrest to assist in the bombing to evaluate her worth to

the organization. (R. at 31). Thus, Forrest was targeted by

her own criminal organization and not by the FBI.

Morlandia’s role in initiating and planning the bombing

was designed to earn the trust of EARTH’s leadership by

demonstrating he could “motivate” (R. at 30); Forrest’s

conviction was not the goal, (R. at 20). Therefore, this is

not a case where the government got lucky and obtained a

conviction in an otherwise arbitrary effort to induce

innocent citizens to commit crimes. Moreover, even if the

facts had been different and Morlandia had selected

Forrest himself, Forrest’s active participation in a known

terrorist organization made her an entirely appropriate

target of the undercover operation. She was not “lawfully

and peacefully minding [her] own business.” Twigg, 588


F.2d at 381. Accordingly, Morlandia’s role in approaching

Forrest about the bombing and planning it does not war-

rant reversal of the conviction.23

1. Benefits of Using the One-Sequence IRAC

A number of textbooks either teach the one-sequence

organization exclusively24 or treat it as the default structure of an

analysis.25 The preference is not without reason.

The one-sequence structure captures the need for the law to

be synthesized for the reader. In the analysis of a legal issue that

involves any degree of complexity, synthesis becomes essential,

and the one-sequence structure aids synthesis. The points of law

presented in the above sample included the following:

(1) outrageous conduct is a valid defense when the government

manufactures the crime from start to finish; (2) outrageous

conduct is not a valid defense when the government initiates and

controls a crime as part of a general sting operation to which the

defendant was drawn on his own accord; (3) a defendant’s willing

participation in the crime can negate the defense; and (4) the

government cannot target a specific individual without reason to

suspect the individual is currently engaged in criminal activity.

If each of these statements were presented and applied separately

in an alternating IRAC structure (IRARARAC), the reader might

have trouble deciphering how each piece of the puzzle fits with

the others. Even if the writer were cognizant of the need to make

the connections, the separation of each point would make the

23. A full version of this sample is available in TURNER, supra note 7, at 366–83. For

additional IRRRAAAC samples, see BEAZLEY, supra note 8, at 359–74, 386–91; CLARY &

LYSAGHT, supra note 8, at 225–29 (in a twist on IRRRAAAC, the author devotes sections A

and B to discussing the law and then devotes section C to the application); EDWARDS,

supra note 8, at 368–78, 399–404; MURRAY & DESANCTIS, supra note 8, at 568–77;

NEDZEL, supra note 10, at 341–43, 398–99; OATES & ENQUIST, supra note 12, at 121–25

(with the exception of section B, on page 122, this sample follows IRRRAAAC), 498–502

(sec. A), 505–506 (sec. B(2))); TURNER, supra note 7, at 110–13, 119–23, 394–405.

24. EDWARDS, supra note 8, at 134–36; FONTHAM ET AL., supra note 10, at 20–21

(providing an organizational outline that keeps rule paragraphs together); NEUMANN,

supra note 8, at 145–48; MURRAY & DESANCTIS, supra note 8, at 568–77 (exclusively pre-

senting samples that keep rule paragraphs together).

25. NEDZEL, supra note 10, at 322–23 (suggesting that keeping rule paragraphs to-

gether should be the default structure).

C


connections challenging to draft. By exploring all four concepts

together, the one-sequence structure followed in the sample

enables explicit, clear connections. The ease of synthesis between

concepts makes the one-sequence structure a particularly good fit

when the author wants to explore the evolution of the law on a

topic as the sample does when it explains that the Ninth Circuit

recently recognized the divide between sting operations and the

unwarranted targeting of individuals that earlier cases implicitly

established.

Finally, in a one-sequence structure, the application of

related legal principles can be combined to avoid repetition. As in

the sample above, the writer can use several paragraphs to

explain the related legal principles and then apply them together

rather than one by one. An alternating IRAC structure, by

contrast, contemplates a matching application paragraph for each

rule paragraph and can, therefore, lead to undesirable repetition.

In the sample above, the same facts that proved the government’s

involvement was part of a sting operation also proved that For-

rest was not targeted as an individual. An alternating IRAC

structure would have led to separate, repetitive application para-

graphs or, at least, an awkward cross-reference to the earlier

points.26 Because the problem of repetition arises in an

alternating structure but not in a one-sequence structure, the

one-sequence structure is a more universally adaptable structure.

It may not always be the best option, but it is always a workable

option.27

26. Of course, alternatives may exist. Perhaps the writer could consolidate the rule

paragraph on sting operations with the rule paragraph on targeting individuals in an

alternating IRAC structure to permit both concepts to be addressed in a single application

paragraph. However, the writer would run the risk of an overloaded rule paragraph that

would be too difficult to read. Some might propose that the writer could use two rule par-

agraphs to discuss the two legal principles, then a single application paragraph that ap-

plies them simultaneously, then a new rule paragraph to start a new RA (rule paragraph-

application paragraph) sequence. This alternative would fall under the flexible IRAC

model I present at the end of the Article.

27. Mary Beth Beazley, Desirable! Fire, Flood, Famine & IRAC?, 10 SECOND DRAFT,

Nov. 1995, at 1 (“IRAC is almost always a valid way—although not necessarily the only

way—to organize legal analysis”); Charles Calleros, IRAC: Tentative and Flexible and

Therefore Reliable, 10 SECOND DRAFT, Nov. 1995, at 4 (“IRAC provides an analytic frame-

work that is illuminating or persuasive in most legal analyses or arguments”).


2. Limitations of the One-Sequence IRAC

The risk of the one-sequence structure is an R1, R2, R3, etc.

sequence that is so long and complex that the reader will forget

the nuances by the time she gets to the application paragraphs.

The risk can be minimized by using separate headings for all sep-

arable sub-issues addressed in an analysis.28 For example, if the

analysis explores a crime with four elements, each element should

have its own IRAC sequence and its own heading.29 Some

elements may be sufficiently simple for one rule explanation and

one application while others may look more like IRRRAAAC,

IRRRAC, IRAAAC, etc. Similarly, if any one element involves the

analysis of separable factors, each factor should have its own

IRAC sequence and its own subheading.30 A factor is separable if

its applicability to the case at hand does not rely on other factors

and if it is sufficiently distinct from other factors that its applica-

tion involves different factual considerations.31 The sample

28. Regarding the use of headings for separate IRAC sequences, see BEAZLEY, supra

note 8, at 89; CALLEROS, supra note 3, at 360 (calling for headings for each issue); CLARY &

LYSAGHT, supra note 8, at 93–94; FONTHAM ET AL., supra note 10, at 46 (advising separate

sequences by argument); MURRAY & DESANCTIS, supra note 8, at 41, 232–35, 558–59,

(endorsing separate sequences for a rule that presents multiple questions to answer);

OATES & ENQUIST, supra note 12, at 157–58 (suggesting headings for each sequence); ;

SLOCUM, supra note 8, at 161–63 (requiring headings); see also EDWARDS, supra note 8, at

129–36 (endorsing separate sequences for sub-issues unless the courts tend to take a more

“unified view” on the issue). But see CLARY & LYSAGHT, supra note 8, at 94 (cautioning that

too many IRACs may lose the big picture and suggesting that the writer vary the sequence

to occasionally omit the issue or conclusion to avoid monotony). The separation of

IRRRAAAC sequences by heading requires the use of initial umbrella or roadmap para-

graphs to introduce the subdivisions of the analysis. Umbrella/roadmap paragraphs are

beyond the scope of this Article but are explained and illustrated in several textbooks. See,

e.g., BEAZLEY, supra note 8, at 239–46; EDWARDS, supra note 8, at 130–33, 287–90;

MURRAY & DESANCTIS, supra note 8, at 233; ROBBINS-TISCIONE, supra note 13, at 218;

SCHULTZ & SIRICO, supra note 13, at 76–77; SLOCUM, supra note 8, at 222–25.

29. BEAZLEY, supra note 8, at 89 (advising an IRAC for each element or issue);

CALLEROS, supra note 3, at 223–24, 255–56 (describing separate IRACs for separate issues

and subissues as the most widely used structure), 226–28 (including, in a sample, separate

IRACs for separate elements of negligence); EDWARDS, supra note 8, at 130–33 (advising

writers to lay out the elements in the umbrella paragraph and then IRAC them one-at-a-

time with a heading for each); MURRAY & DESANCTIS, supra note 8, at 558 (stating that

subissues require a separate IRAC).

30. See RAY, supra note 8, at 110–13 (including a sample memo that uses headings for

each sequence and an annotation stating that subheadings “can be helpful” when the dis-

cussion is divided by sub-issue).

31. See PARRISH & YOKOYAMA, supra note 13, at 39 (stating that the argument section

of a brief should be divided into headings that each give an “independent reason” for the

author’s conclusion).


above, for example, was from one section of a brief. The rule

explanations were kept together within the same heading because

they all led up to the point that the government’s conduct was

acceptable because it was part of a sting operation. By contrast,

separate sections of the brief with separate headings addressed

other factors such as the government’s efforts to avoid participa-

tion in an actual crime and the lack of coercion by the government

agent.

Although headings can avoid overly long R sequences in the

one-sequence structure, such a division of the analysis may not

always be desirable. In factor-balancing analyses, the separation

of factors by heading may inhibit the writer’s ability to weigh

conflicting factors or to unify supportive factors. As explained in

the next section, the alternating structure may offer unique bene-

fits in factor-balancing analyses.

B. Alternating IRAC (IRARARAC)

In contrast to the one-sequence IRAC, an alternating IRAC

places each application paragraph right after the corresponding

rule paragraph so that a principle of law is applied as soon as it is

introduced.32

Sample Alternating IRAC

The court is unlikely to strike one of Romano’s prior

convictions because Romano’s criminal history falls within

the spirit of the three strikes scheme.

When the nature and circumstances of a defendant’s

present felony are identical to his prior felonies, the priors

should not be stricken because the defendant has failed to

“learn his lesson.” Compare People v. Williams, 948 P.2d

32. RAMBO & PFLAUM, supra note 3, at 539–632; RAY, supra note 8, at 79–80; SHAPO

ET AL., supra note 8, at 147–48; SLOCUM, supra note 8, at 211–13, 590–91, 600–02, 616–20;

see also SCHMEDEMANN & KUNZ, supra note 8, at 103–05 (providing a sample that alter-

nates between rules and application).

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429, 438 (Cal. 1998) (affirming the appellate court’s finding

that where defendant’s current conviction for driving under

the influence mirrored his prior convictions of the same

offense, the trial court’s decision to strike the priors was an

abuse of discretion), with People v. Cluff, 105 Cal. Rptr. 2d

80, 87 (Ct. App. 2001) (stating that the defendant’s present

felony of failing to update his sex offender registration did

not prove recidivist tendencies toward child molestation

and, therefore, did not prevent the striking of a prior).

In the instant case, all of Romano’s previous thefts

were committed while he was high on meth. Now he has

once again committed a theft while high. Romano has not

“learned his lesson,” but instead is continuing both his

willingness to steal and the addiction that underlies his

criminal activity. He is exactly the type of recidivist the

three strikes law targets.

Another consideration is the seriousness of the present

felony. Compare People v. Burgos, 12 Cal. Rptr. 3d 566,

572 (Ct. App. 2004) (finding dismissal of a prior was

required where two of the defendant’s three strikes—using

fear to obtain shoes from one fellow detainee and kicking

another—were not “the worst of crimes”), with People v.

Myers, 81 Cal. Rptr. 2d 564, 566 (Ct. App. 1999) (holding

that the trial court did not abuse its discretion when it

declined to strike priors that involved arson and armed

robbery). In general, non-violent crimes are less serious

than violent crimes. Compare People v. Bishop, 66 Cal.

Rptr. 2d 347, 349–50 (Ct. App. 1997) (noting that the

defendant’s petty theft conviction operated as a mitigating

factor), with People v. McGlothin, 79 Cal. Rptr. 2d 83, 87

(Ct. App. 1998) (holding that trial court erred in striking a

prior when defendant’s most recent crime involved a

physical attack on two elderly individuals). However, the

non-violent nature of a felony does not necessarily warrant

saving the defendant from a three strikes sentence. See

People v. Strong, 104 Cal. Rptr. 2d 490, 501 (Ct. App. 2001)

(stating that the intent of the three strikes law is “to ensure

longer prison sentences” for defendants who have a

qualifying strike and subsequently commit “any felony,”

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whether violent or not, and finding that the defendant’s

fraudulent sale of fake illicit drugs fell within the spirit of

the three strikes law because it could have led to violence if

arguments with the buyers had ensued).

Here, Romano did not commit any violence in carrying

out the robbery and did not have a weapon. At first blush,

his current crime may not seem any more serious than the

crimes in Burgos. However, Romano sufficiently intimidat-

ed the drug store staff to obtain the two bottles of prescrip-

tion drugs he intended to steal. Moreover, just as the crime

in Strong could have escalated into violence if one of the

potential buyers discovered the defendant’s deceit,

Romano’s robbery could have escalated into violence if one

of the staff members or a customer had decided to take ac-

tion to prevent his theft.

In light of the recidivist nature of his drug-induced

theft crimes and the risk of violence associated with his

current crime, Romano remains a danger to society. The

court is unlikely to conclude that he is worthy of a lesser

sentence.33

1. Benefits of Alternating IRAC

The alternating IRAC structure offers the benefit of applying

a factor or element immediately after it is introduced and

explained. Imagine that the three strikes issue from the above

sample involved two or three additional factors. It would be

difficult for the reader to digest four or five factors in a

one-sequence (IRRRAAAC) structure and then recall all of the

information from the rule paragraphs when the author finally

33. For additional examples of IRARARAC, see CLARY & LYSAGHT, supra note 8, at

203–05 (sec. C); OATES & ENQUIST, supra note 12, at 122 (sec. B), 503–05 (sec. B(1)); RAY,

supra note 8, at 95–98, 187–189 (sec. B); SCHMEDEMANN & KUNZ, supra note 8, at 104–06;

SHAPO ET AL., supra note 8, at 147–48, 580–84 (through pt. III); SLOCUM, supra note 8, at

590–91, 600–02, 616–20; ROBERT BARR SMITH, THE LITERATE LAWYER: LEGAL WRITING

AND ORAL ADVOCACY 91–98 (4th rev’d ed. 2009); TURNER, supra note 7, at 362–64.

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moves on to applying the factors.34 Although, as discussed in the

prior section of this Article, the use of headings can avoid such

overly long rule sections in the one-sequence structure, the alter-

nating structure offers at least a couple of key benefits in certain

types of analyses.

First, in factor-balancing analyses, the alternating IRAC

structure allows the writer to connect different factors at the end

of the section. In the above sample, the last sentence (the “C” in

IRARARAC) brings both factors together for a powerful end to

this section of the analysis: “In light of the recidivist nature of his

drug-induced theft crimes and the risk of violence associated with

his current crime, Romano remains a danger to society.”

Separate IRAC sequences with separate headings would have left

each supporting factor isolated in its respective section. While a

possible solution in a one-sequence IRAC would be to bring the

two factors together in the conclusion section of the

memorandum, the presence of other intervening sections would

make this less than ideal. The sample memorandum from which

I took this excerpt had two additional sections I have not included

here, one addressing the seriousness of the defendant’s prior

crimes and the other addressing social factors that helped predict

the future recidivism of the defendant. A one-sequence structure,

therefore, may not have been as effective as the alternating IRAC

structure modeled above because by the time the reader reached

the final “Conclusion” section of the memorandum, her

recollection of the writer’s points about the similarity of the past

and present crimes and the severity of the present crime would be

diminished by the intervening pages of analysis in the other two

sections of the memorandum. The punch would be lost. By

contrast, the alternating structure brought these two points

together immediately before moving on to other factors.

Second, the alternating IRAC structure can be strategic.

When one or more of the RA sequences relates to a counterargu-

ment, the author may not want to highlight the adverse points

with separate headings and separate IRAC sequences, a result

34. NEDZEL, supra note 10, at 326 (nothing that when more than two factors are in-

volved, if the writer explains all factors before applying any of them, “the reader may

quickly lose sight of the factors, what they mean, and which are in your client’s favor”);

RAY, supra note 8, at 79 (applying each component of a legal test right after explaining it

offers the advantage of “keeping the application close to the law, so the reader has the law

fresh in his or her mind while reading the application”).


that would follow from selection of a one-sequence (IRRRAAAC)

structure because, as discussed in the previous section, the one-

sequence structure usually requires the use of headings to

separate subissues. For example, imagine a slight change to the

facts of the case addressed in the above sample. Suppose

Romano’s current crime was not similar to the past crimes. In

this alternative scenario, if the author had separate IRACs with

separate headings for similarity and severity, the section on simi-

larity would present a conclusion adverse to the writer’s overall

conclusion. In objective memo writing, this anomaly could

confuse the reader. In persuasive brief writing, an adverse

conclusion would be even more detrimental.35 However, the

alternating IRAC structure would permit the author to present

the adverse conclusion about similarity in the context of the

favorable conclusion about severity rather than giving the ad-

verse conclusion undue emphasis by placing it in its own section

with its own heading. Because the alternating IRAC structure

does not present the same risk as the one-sequence IRAC of over-

burdening the reader with multiple rule paragraphs at once,

headings are not necessarily needed to separate each subissue.

In sum, the alternating structure presents analytical and

strategic benefits, especially in a factor-based analysis.

2. Limitations on Alternating IRAC

In the sample above, the legal issue involves the analysis of

factors that are sufficiently specific and straightforward that they

can be illustrated through parentheticals rather than full case-

examples. Although the author still synthesizes the law for the

reader by reconciling different court pronouncements and out-

comes, the analysis does not require a nuanced evaluation of the

reasons behind the courts’ conclusions or an elaborate proof that

the case at hand is comparable to the cases the author uses to

support her assessment of the case. The alternating structure

works well in this situation because the briefness of each RA

35. CHRISTINE COUGHLIN ET AL., A LAWYER WRITES: A PRACTICAL GUIDE TO LEGAL

ANALYSIS 323–24 (2013) (advising writers to avoid highlighting an opponent’s arguments

in persuasive writing but to instead emphasize their weaknesses); accord BEAZLEY, supra

note 8, at 111–15 (discussing how to address how to deal with opposing counsel’s argu-

ments); CLARY & LYSAGHT, supra note 8, at 201 (last annotation on the page); SHAPO ET

AL., supra note 8, at 395–96.


sequence lessens the need for separate IRAC sequences with

separate headings.

By contrast, when some of the factors or elements require

multiple rule paragraphs or multiple application paragraphs, us-

ing an alternating IRAC structure may result in an unruly struc-

ture like IRRRARARAAAC. As each RA sequence becomes

longer, e.g., RRRA, the reader becomes less able to change gears

to a new factor or element without the aid of a new heading. A

one-sequence IRAC (IRRRAAAC) with multiple rule paragraphs

would create an expectation on the part of the reader that each

point of law will be applied in the application section of the

analysis and often in the same order. An alternating IRAC

structure, however, does not provide any such cues to the reader.

Transitional language at the start of a new factor might not be

sufficient to ease a busy legal reader into the next part of the

analysis. The one-sequence structure, especially with headings to

separate the IRAC sequences, therefore, may be preferable when

the factors or elements are more complex.

In addition to requiring relatively straightforward factors, the

alternating IRAC structure requires that each factor or element is

completely independent of the others. As explained in the earlier

section of this Article, when factors or elements have more

complicated connections to one another, a one-sequence structure

is preferable because it both clarifies connections and avoids

repetitive application paragraphs. In the sample alternating

IRAC, the first factor (the similarity between past and present

crimes) and the second factor (the seriousness of the crimes) do

not depend on or relate to one another. Therefore, the author

does not need to be concerned about repetitive application

paragraphs that would rely on the same facts or arguments.

In sum, writers should consider using the alternating

structure only when (1) the analysis involves discrete, separable

factors or elements that do not depend on one another or on the

same factual considerations; and (2) the factors or elements

analyzed are straightforward and do not require lengthy explana-

tion in the rule paragraphs or elaborate proof in the application

paragraphs. Even if these two criteria are met, separate IRACs

with separate headings for each factor may still be preferable

unless (1) the author wants to bring the factors together before

moving on to other points; or (2) the author wants to avoid reach-

ing an adverse conclusion under one of the headings.


C. IRAC by Paragraph (IRAIRAIRAC)

A twist on the alternating IRAC structure is to bring each R

and A together into a paragraph and add a topic sentence to unite

them. The result is an IRAC by paragraph structure in which

each paragraph contains an IRA sequence. Because this alterna-

tive does not have separate rule paragraphs and application

paragraphs, this section of the Article will use the term “rule

discussion” in lieu of “rule paragraph.”

Sample IRAC by Paragraph

The similarities between Romano’s prior convictions

and his most recent robbery weigh heavily against striking

one of the priors. When the nature and circumstances of a

defendant’s present felony are identical to his prior

felonies, the priors should not be stricken because the

defendant has failed to “learn his lesson.” Compare People

v. Williams, 948 P.2d 429, 438 (Cal. 1998) (affirming the

appellate court’s finding that where defendant’s current

conviction for driving under the influence mirrored his

prior convictions of the same offense, the trial court’s

decision to strike the priors was an abuse of discretion),

with People v. Cluff, 105 Cal. Rptr. 2d 80, 87 (Ct. App.

2001) (stating that the defendant’s present felony of failing

to update his sex offender registration did not prove

recidivist tendencies toward child molestation and, there-

fore, did not prevent the striking of a prior). In the instant

case, all of Romano’s previous thefts were committed while

he was high on meth. Now he has once again committed a

theft while high. Romano has not “learned his lesson,” but

instead is continuing both his willingness to steal and the

addiction that underlies his criminal activity. He is exactly

the type of recidivist defendant the three strikes law

targets.

The seriousness of Romano’s most recent robbery also

weighs against leniency. Compare People v. Burgos, 12 Cal.

I

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A

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Rptr. 3d 566, 572 (Ct. App. 2004) (finding dismissal of a

prior was required where two of the defendant’s three

strikes—using fear to obtain shoes from one fellow detainee

and kicking another—were not “the worst of crimes”), with

People v. Myers, 81 Cal. Rptr. 2d 564, 566 (Ct. App. 1999)

(holding that the trial court did not abuse its discretion

when it declined to strike priors that involved arson and

armed robbery). In general, non-violent crimes are less

serious than violent crimes. Compare People v. Bishop, 66

Cal. Rptr. 2d 347, 349–50 (Ct. App. 1997) (noting that the

defendant’s petty theft conviction operated as a mitigating

factor), with People v. McGlothin, 79 Cal. Rptr. 2d 83, 87

(Ct. App. 1998) (holding that trial court erred in striking a

prior when defendant’s most recent crime involved a

physical attack on two elderly individuals). However, the

absence of violence in the commission of a felony does not

necessarily warrant saving the defendant from a three

strikes sentence. See People v. Strong, 104 Cal. Rptr. 2d

490, 501 (Ct. App. 2001) (stating that the intent of the

three strikes law is “to ensure longer prison sentences” for

defendants who have a qualifying strike and subsequently

commit “any felony,” whether violent or not, and finding

that the defendant’s fraudulent sale of fake illicit drugs fell

within the spirit of the three strikes law because it could

have led to violence if arguments with the buyers had

ensued). Here, Romano did not commit any violence in

carrying out the robbery and did not have a weapon. At

first blush, his current crime may not seem any more

serious than the crimes in Burgos. However, Romano

sufficiently intimidated the drug store staff to obtain the

two bottles of prescription drugs he intended to steal.

Moreover, just as the crime in Strong could have escalated

into violence if one of the potential buyers discovered the

defendant’s deceit, Romano’s robbery could have escalated

into violence if one of the staff members or a customer had

decided to take action to prevent his theft.


theft crimes and the risk of violence associated with his


C

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sentence.36

1. Benefits of IRAC by Paragraph

IRAC by paragraph is an adaptation of the alternating IRAC

structure discussed in the prior section of this Article. It offers

the same benefits as that structure—enabling the balancing of

factors within a section and avoiding overly long rule sections.

In addition, IRAC by paragraph enables a more forceful and

direct style. Whereas the alternating IRAC structure has only an

initial thesis about the case at hand for the entire section of a

brief or memorandum and then launches into a topic sentence for

the first rule paragraph that states a point of law, IRAC by

paragraph creates a thesis about the case at hand for each para-

graph. An alternating IRAC can seem more academic because the

rule paragraphs merely state points of law. By contrast, in the

IRAC-by-paragraph structure, the reader is never in doubt

regarding the relevance of a particular point of law because the

topic sentence of each paragraph states the point about the case

that the rule discussion and application in the paragraph will

prove. In a field in which readers have little patience for

irrelevant information, this benefit should carry considerable

weight in the selection of an organizational structure. Because of

its forceful and direct style, IRAC by paragraph may be

particularly well-suited for persuasive writing, but readers of ob-

jective writing can also benefit from its clarity and simplicity.

2. Limitations of IRAC by Paragraph

As an adaptation of the alternating IRAC structure, IRAC by

paragraph should be used with the same limitations: the analysis

should involve discrete, separable factors or elements that do not

36. For more examples of IRAIRAIRAC, see CALLEROS, supra note 3, at 261–62;

DERNBACH ET AL., supra note 13, at 459–61 (sec. I), 467–70; OATES & ENQUIST, supra note

12, at 122 (the second RA sequence in section B uses an IRA structure); PARRISH &

YOKOYAMA, supra note 13, at 159–63; RAMBO & PFLAUM, supra note 3, at 575–79, 604–16;

SHAPO ET AL., supra note 8, at 584–85 (sec. IV); SLOCUM, supra note 8, at 592–93 (the last

two paragraphs present a counterargument in an IRA structure).


depend on one another or on the same factual considerations, and

the factors or elements analyzed should be sufficiently simple to

avoid lengthy explanation in the rule discussion or elaborate proof

in the application.

IRAC by paragraph does have an additional limitation, how-

ever. Because the structure brings rules and application into the

same paragraph, it may result in overly long paragraphs in some

analyses. The author should consider paragraph length when

choosing between alternating IRAC and IRAC by paragraph.

Inserting a new paragraph between the R and the A would

not be a good solution. This would be an IR-A-C organization.

Since the I provides the point that the R and A will prove, the

author would have nothing new to say in a topic sentence for a

separate A paragraph. For example, in the sample IRAC by

paragraph above, the first IRA paragraph started with the point

that the similarities between the defendant’s crimes weighs

against striking one of his prior convictions. The brief then used

case law to establish the relevance of similarities between crimes

before making two points in application: the defendant’s crimes

shared an underlying addiction and all involved theft. With a

new paragraph for the application, the analysis would look like

this:

Illustration of Problematic IRAC Adaptation

The similarities between Romano’s prior convictions

and his most recent robbery weigh heavily against striking

one of the priors. When the nature and circumstances of a

defendant’s present felony are identical to his prior

felonies, the priors should not be stricken because the

defendant has failed to “learn his lesson.” Compare People

v. Williams, 948 P.2d 429, 438 (Cal. 1998) (affirming the

appellate court’s finding that where defendant’s current

conviction for driving under the influence mirrored his

prior convictions of the same offense, the trial court’s

decision to strike the priors was an abuse of discretion),

with People v. Cluff, 105 Cal. Rptr. 2d 80, 87 (Ct. App.

2001) (stating that the defendant’s present felony of failing

to update his sex offender registration did not prove

I

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recidivist tendencies toward child molestation and, there-

fore, did not prevent the striking of a prior).






criminal activity. He is exactly the type of recidivist

defendant the three strikes law targets.

In this problematic structure, the topic sentence at the start

of the first paragraph about the defendant’s crimes is not proven

by the end of the paragraph because only the law is discussed.

And the narrow point about the underlying addiction that starts

the new paragraph is not a good unifying topic sentence because

it does not capture the second point about theft. If we were to add

a unifying topic sentence to the second paragraph, it would be the

point already stated at the start of the sequence—the similarity

in crimes weighs against striking one of his prior convictions.

Given the shortness of the analysis in this example, IRAC by

paragraph seems preferable. Perhaps in a longer analysis, the

repetition of the I at the start of the A paragraph might seem less

offensive and, therefore, maybe we could solve the problem by

separating the I, R, and A into their own paragraphs—this would

be the alternating IRAC structure.

In sum, IRAC by paragraph is a good alternative to alternat-

ing IRAC provided that the analysis of each point is sufficiently

simple to remain in a single paragraph. It offers greater forceful-

ness and clarity.

D. The IRAC Sentence

Sometimes an analysis calls for a point so specific and

incontrovertible that the entire IRAC sequence on the point can

be accomplished in a sentence. The IRAC sentence consists of an

assertion about the legal impact of a fact of the case at hand

followed by a parenthetical citation that proves the asserted

impact.

A


Sample IRAC Sentence

Because only three women at the police department have

ever completed the required exam, Plaintiffs cannot use a

statistical analysis to prove the exam had a disparate im-

pact on women. See Morita v. S. Cal. Permanente Med.

Grp., 541 F.2d 217, 220 (9th Cir. 1976) (“‘statistical

evidence derived from an extremely small universe . . . has

little predictive value and must be disregarded’”); Mayor of

Phila. v. Educ. Equal. League, 415 U.S. 605, 621 (1974)

(sample size of thirteen was too small to permit a disparate

impact claim).37

1. Benefits of the IRAC Sentence

When appropriate, IRAC sentences can be used to (1) address

elements that are not likely to be disputed because they are easily

satisfied; (2) address factors that either clearly apply or clearly do

not apply to the case; (3) set up a rebuttal to an opponent’s

point;38 or (4) provide an extra punch to the introduction, thesis,

umbrella, or conclusion paragraphs.39 The IRAC sentences can

even serve as an independent mini-RA sequence.40 Under the

right circumstances, IRAC sentences can efficiently provide the

reader with the snapshot needed to resolve an uncontroversial

point or to understand a more complex point in the right context.

37. For additional samples of IRAC sentences, see OATES & ENQUIST, supra note 12, at

457 (“Such an erroneous denial . . . .”); RAMBO & PFLAUM, supra note 3, at 610 (“Indeed

Walker’s failure . . . mere negligence”).

38. The beginning of section C in the flexible IRAC sample below contains an example.

See also MURRAY & DESANCTIS, supra note 8, at 405 (“Plaintiffs have two opportunities . .

.”), 408 (“Plaintiff may contend . . .”); RAMBO & PFLAUM, supra note 3, at 610 (“Indeed

Walker’s failure . . . mere negligence”).

39. The last paragraph of section C in the flexible IRAC sample below contains an

example. For additional examples, see RAMBO & PFLAUM, supra note 3, at 579 (“In review-

ing the record . . . Williams . . . at 693”); SHAPO ET AL., supra note 8, at 585 (“In actions for

libel and slander . . . Altman . . . (1980)”).

40. Section A in the flexible IRAC sample below contains an example of an IRAC sen-

tence as its own RA sequence.


2. Limitations on the IRAC Sentence

My observation from the briefs I analyzed is that the IRAC

sentence is often overused to the detriment of substantive

accuracy, persuasiveness, and clarity. An IRAC sentence is

appropriate only when neither the facts nor the point of law

require explanation or proof. In the sample above, the record

presumably established that only three women took the exam

and, therefore, there were no facts to dispute or explain. Moreo-

ver, the parentheticals are sufficiently specific to prove the asser-

tion without elaboration. If, for example, the two cited cases had

included any limitations or caveats on their pronouncements

regarding the impact of a small sample size, then an IRAC

sentence would not have worked. The nuances would have re-

quired a full case explanation and a more elaborate application of

the point of law to the facts of the case at hand. Using an IRAC

sentence for a more controversial or nuanced point can severely

decrease the effectiveness of the writing by losing the reader’s

trust and by forfeiting the opportunity to explain the controversy

or nuances in a favorable manner.

As an example of a problematic IRAC sentence, consider the

following alternative to the sample used in the alternating IRAC

and IRAC by paragraph samples:

Defendant should not be saved from one of his convic-

tions because of the seriousness of his present theft. See

People v. Myers, 81 Cal. Rptr. 2d 564, 566 (Ct. App. 1999)

(holding that the trial court did not abuse its discretion

when it declined to strike priors that involved arson and

armed robbery).

The IRAC sentence does not work well for this point because

it oversimplifies both the law and the facts of the case at hand.

With respect to the law, we only have an example of arson and

armed robbery without any understanding of the other end of the

spectrum or the reasoning that led to finding these crimes were

serious. Without those details, we do not know what to do with

the defendant’s theft that involved neither arson nor armed rob-

bery. By contrast, the sample alternating IRAC and IRAC by


paragraph organizations of this analysis explained the role of vio-

lence in the assessment of a crime’s severity and explained why

the absence of violence in the case at hand should not result in a

striking of one of the defendant’s prior thefts.

In sum, the IRAC sentence has a limited but legitimate place

in organizational structure.

E. Narrative Add-Ons: Mixing Facts into the “I” of IRAC

A rigid understanding of IRAC not only misses the above

adaptations of IRAC that complex analyses require but also over-

looks the common use of narrative details to provide a factual

context for the legal points to be discussed.41 One of the criticisms

of IRAC is that it is robotic, even boring.42 Adding a narrative

element to IRAC by using the facts of the case at hand to intro-

duce and set the stage for each RA sequence can help engage and

ultimately persuade the reader.43 This technique can be used in

any of the IRAC variations. Moreover, although its persuasive

value makes it a particularly important tool in brief writing,44

narratives can also avoid the monotony of legal research memo-

randa by highlighting the significance of the legal issues in the

context of the case at hand. The added narratives should be brief

to avoid causing the typical results-oriented legal reader to lose

patience. The writer should also avoid repetition of the same

facts in the application paragraph.

Below is the previous alternating IRAC sample with

narratives added in the first thesis paragraph and at the start of

each RA sequence.

41. See Kraft, supra note 5, at 16–20 (describing and quoting from briefs that included

narrative details as part of either an initial umbrella thesis or thesis paragraphs within

each subdivision); OATES ET AL., supra note 12, at 37; RAMBO & PFLAUM, supra note 3, at

610–12 (sec. B(1)); SHAPO ET AL., supra note 8, at 621–23 (pt. A).

42. Kenneth D. Chestek, The Plot Thickens: The Appellate Brief as Story, 14 LEGAL

WRITING 127 (2008).

43. Id.

44. Id.


Sample IRAC by Paragraph with Added Narratives

Defendant Romano has committed three seri-

ous theft crimes. He broke into an elderly woman’s

home and an electronics store and, most recently,

he intimidated a pharmacy clerk into giving him

prescription drugs. He has shown no regard for

the property rights of his victims and very little

regard for their physical and emotional well-being.

Despite jail time and compulsory counseling for his

drug addiction, Romano has continued both his

drug habit and the life of crime it has led him to

embrace. The trial court’s decision to strike one of

Romano’s prior convictions was an abuse of

discretion because Romano’s criminal history falls

within the spirit of the three strikes scheme.

Romano’s repeat offenses do not deserve

leniency. Romano’s prior and current crimes share

the same fact pattern: he needs money, he gets

high, and then he invades a home or business to

steal. In his most recent crime, Romano needed

medicine he claimed he could not afford. So, he

intentionally became high to give himself the

“guts” he said he needed to invade the pharmacy

during business hours and demand the medicine.

Similarities between multiple felonies reveal that

the defendant has failed to “learn his lesson” and

therefore should not be spared the three strikes

sentence. Compare People v. Williams, 948 P.2d

429, 438 (Cal. 1998) (affirming the appellate

court’s finding that where defendant’s current

conviction for driving under the influence mirrored

his prior convictions of the same offense, the trial

court’s decision to strike the priors was an abuse of

discretion), with People v. Cluff, 105 Cal. Rptr. 2d

Added

Narrative

Added

Narrative


80, 87 (Ct. App. 2001) (stating that the defendant’s

present felony of failing to update his sex offender

registration did not prove recidivist tendencies

toward child molestation and, therefore, did not

prevent the striking of a prior). Romano has not

“learned his lesson,” but instead is continuing both

his willingness to steal and the addiction that

underlies his criminal activity. He is exactly the

type of recidivist the three strikes law targets.

The severity of Romano’s crimes also weighs

heavily against leniency. Although he has yet to

harm an occupant, his willingness to invade and

intimidate show little regard for the safety of his

victims. The pharmacy clerk on duty during

Romano’s most recent theft suffered nightmares as

a result of the incident and was too fearful to

return to his job. The severity of a defendant’s

prior and current felonies should play a large role

in a court’s decision to strike a prior felony. Com-

pare People v. Burgos, 12 Cal. Rptr. 3d 566, 572

(Ct. App. 2004) (finding dismissal of a prior was

required where two of the defendant’s three

strikes—using fear to obtain shoes from one fellow

detainee and kicking another –were not “the worst

of crimes”), with People v. Myers, 81 Cal. Rptr. 2d

564, 566 (Ct. App. 1999) (holding that the trial

court did not abuse its discretion when it declined

to strike priors that involved arson and armed

robbery). In general, non-violent crimes are less

serious than violent crimes. Compare People v.

Bishop, 66 Cal. Rptr. 2d 347, 349–50 (Ct. App.

1997) (noting that the defendant’s petty theft con-

viction operated as a mitigating factor), with Peo-

ple v. McGlothin, 79 Cal. Rptr. 2d 83, 87 (Ct. App.

1998) (holding that trial court erred in striking a

prior when defendant’s most recent crime involved

a physical attack on two elderly individuals).

However, a crime that poses a potential for vio-

lence should be considered a violent crime even if

no violence actually ensued. See People v. Strong,

Added

Narrative


104 Cal. Rptr. 2d 490, 501 (Ct. App. 2001) (finding

that the defendant’s fraudulent sale of fake illicit

drugs fell within the spirit of the three strikes law

because it could have led to violence if arguments

with the buyers had ensued). At first blush, Ro-

mano’s thefts may not seem any more serious than

the crimes in Burgos. However, in his most recent

crime, Romano sufficiently intimidated the drug

store staff to obtain the two bottles of prescription

drugs he intended to steal. He was convicted of

robbery, a crime that requires at least a threat of

force. Moreover, just as the crime in Strong could

have escalated into violence if one of the potential

buyers discovered the defendant’s deceit, Romano’s

robbery could have escalated into violence if one of

the staff members or a customer had decided to

take action to prevent his theft.

In light of the recidivist nature of his drug-

induced theft crimes and the risk of violence asso-

ciated with his current crime, Romano remains a

danger to society. The court is unlikely to conclude

that he is worthy of a lesser sentence.45

1. Benefits of Narratives

The addition of narratives grabs the reader’s attention and

lessens the risk the reader will skip, dismiss, or misunderstand

the author’s points. As one scholar has stated, “a brief that relies

purely on a logos-based argument will be lifeless, just as a single

strand of the DNA molecule is incomplete. Winding in a solid sto-

ry-based argument will bring the brief to life.”46 As another

45. For additional samples of this structure, see supra note 40.

46. Kenneth D. Chestek, Judging by the Numbers: An Empirical Study of the Power of

Story, 7 J. ALWD 8 (2010). Chestek’s analysis focused on a broader application of story-

telling than the mere addition of narratives to IRAC. However, his study’s finding that

story-based briefs are more persuasive than those that adhere more closely to IRAC, id. at

18–19, supports the narrative additions to IRAC that this Article describes. See also Linda

Edwards, Convergence of Analogical and Dialectic Imagination in Legal Discourse, 20

LEGAL STUD. F. 13 (1996) (stating, on the importance of narrative in legal analysis, that

“[i]f a law-creator sees a legal dispute from a particular narrative perspective, that per-


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scholar has explained, narratives provide the “moral value and

meaning” of “events” by setting them in the “context of a narra-

tive structure.”47 The addition of narrative details to set the

context for a point of law is an important step toward

acknowledging the significance of narrative reasoning in legal

decision-making.48

2. Limitations on Narratives

As demonstrated in the above sample, narrative introduc-

tions to the “RA” sequences fit naturally in an IRAC by paragraph

structure as part of the “I” of each sequence. Use of narratives in

other structures is more limited. The one-sequence IRAC and

alternating IRAC structures do not have a natural home for

narratives apart from thesis paragraphs (again, the “I” part of the

structure). Narrative details would not fit in a rule paragraph,

which is otherwise devoted to a discussion of a point of law. And,

of course, narrative details are already in application paragraphs.

Therefore, in these other structures, the logical place to add

introductory narrative details is in the thesis paragraph as illus-

trated below.

Sample Alternating IRAC with Added Narrative

Defendant Romano has committed three serious theft

crimes. He broke into an elderly woman’s home and an

electronics store and, most recently, he intimidated a

pharmacy clerk into giving him prescription drugs. He has

shown no regard for the property rights of his victims and

very little regard for their physical and emotional well-

being. Despite jail time and compulsory counseling for his

drug addiction, Romano has continued both his drug habit

spective will play its role in law-creation” even if it is not the most accurate narrative).

47. Id. at 11.

48. Kraft, supra note 5, at 38 n.128 (arguing that the inclusion of narratives should be

taught as part of IRAC to enable students to meet the expectations of judges and practi-

tioners that narrative details will play a larger role in legal writing than a strict adherence

to IRAC might otherwise encourage).


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and the life of crime it has led him to embrace. The court is

unlikely to strike one of Romano’s prior convictions because

Romano’s criminal history falls within the spirit of the

three strikes scheme.

When the nature and circumstances of a defendant’s

present felony are identical to his prior felonies, the priors

should not be stricken because the defendant has failed to

“learn his lesson” . . .






criminal activity. He is exactly the type of recidivist the

three strikes law targets.

Another consideration is the seriousness of the present

felony . . .

Here, Romano did not commit any violence in carrying

out the robbery and did not have a weapon. At first blush,

his current crime may not seem any more serious than the

crimes in Burgos. However, Romano sufficiently intimidat-

ed the drug store staff to obtain the two bottles of

prescription drugs he intended to steal. Moreover, just as

the crime in Strong could have escalated into violence if one

of the potential buyers discovered the defendant’s deceit,

Romano’s robbery could have escalated into violence if one

of the staff members or a customer had decided to take

action to prevent his theft.


crimes and the risk of violence associated with his theft



sentence.

A

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In sum, narratives can be included in the thesis paragraphs

of any analysis. However, an IRAC by paragraph structure is the

best fit for a more pervasive use of narratives.

F. A Flexible IRAC

With an arsenal of possible adaptions of IRAC from which to

choose, legal writers can understand IRAC as a flexible concept

rather than a rigid model. All of the adaptations discussed above

can be combined to escape from the monotony of a universal

structure and used for strategic effect provided that the legal

writer adheres to the baseline principles of effective organization

discussed at the start of this Article.49

The sample below illustrates how adaptations of IRAC can be

integrated with one another within a single brief or memoran-

dum. It adds narratives to help build sympathy for the legal

argument. Consistent with this Article’s discussion of the best use

of the one-sequence structure,50 sections A and B of the sample

use this structure for more complex legal issues that require a

lengthier and well-synthesized discussion of the law. By contrast,

section C of the sample uses the alternating IRAC structure

because each point is fairly straightforward and is sufficiently

independent that it can be applied without repetition. Finally, the

sample uses the IRAC sentence only for very specific points that

do not require elaboration either with the details of the cited

precedent or with the facts of the case at hand.

49. See supra nn.15–19 and accompanying text.

50. See supra pg. 243, first full paragraph, and pg. 250, first full paragraph.


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One-Sequence

IRAC

I

Integrated Sample

II. The Trial Court’s Denial of Qualified Immunity Should Be

Reversed Because Defendant’s Speech Was Protected by the

First Amendment.

The lawsuit against Defendant for expressing his

opinions as the leader of his neighborhood association

should be dismissed. Defendant’s speech was protected by

the First Amendment for three reasons. First, it was

quintessential political speech that should be afforded the

highest level of protection. Second, Plaintiffs’ contention

that his speech was not protected because he was acting as

a city official is contrary to the established right of public

officials to engage in public debate. Third, the trial court’s

conclusion that the commercial speech doctrine permits

this lawsuit was erroneous.

A. The First Amendment Protected Defendant’s Right to

Freely Express His Opinions on How to Improve the

Neighborhood Even If His Opinions Were

Discriminatory.

At a neighborhood association meeting in the midst of a

discussion about the causes of and cures for crime in the

neighborhood, Defendant blurted out an ignorant opinion

that blacks were to blame. He also advocated some

solutions that the Plaintiffs claim were discriminatory. It

is not clear whether his proposed solutions were truly

discriminatory, but we will assume for the purposes of this

brief that they were. Nonetheless, Plaintiffs’ theory of the

case strikes at the heart of the First Amendment.

Defendant’s efforts to persuade other members of his

neighborhood association to follow his ideas for improving

the neighborhood were protected by the First Amendment.

The First Amendment does not discriminate between good

and bad ideas. All are protected.

Narrative


Defendant’s opinions on crime and safety in his

neighborhood, matters of public concern, offered in the

course of a public debate must be afforded the highest level

of protection. See NAACP v. Claiborne Hardware Co., 458

U.S. 886, 913 (1982) (stating that “expression on public

issues ‘has always rested on the highest rung of the

hierarchy of First Amendment values’ because ‘debate on

public issues should be uninhibited, robust, and wide-

open’”); Mich. Prot. & Advocacy Serv., Inc., 799 F. Supp.

695, 719 (E.D. Mich. 1992) (holding that neighbors’ protests

against a group home were the “purest form of protected

First Amendment activity”).

Moreover, the First Amendment protects both desira-

ble and undesirable speech. See Brandenberg v. Ohio, 395

U.S. 444, 448 (1969) (striking down a statute that prohibit-

ed advocating crime and violence); FCC v. Pacifica Found.,

438 U.S. 726, 745–46 (1978) (“[I]f it is the speaker’s opinion

that gives offense, that consequence is a reason for accord-

ing it constitutional protection” because “it is a central

tenet of the First Amendment that the government must

remain neutral in the marketplace of ideas”).

Therefore, even assuming section 1983 and the federal

and state housing laws could be construed to ban the

expression of discriminatory opinions, the First Amend-

ment would not countenance such content-based regulation

of speech. See White v. Lee, 227 F.3d 1214 (9th Cir. 2000).

In White, . . . [full discussion omitted here]. The court

concluded that “a speaker’s advocacy of his views, however

‘ill-advised, uninformed, and even distasteful,’” can amount

to a violation of the Fair Housing Act only if the Branden-

berg standard is met. Id. at 1230.

Under the above precedent, the Defendant was free to

participate in his neighborhood association, to express his

views at the meetings, and to advocate for his desired poli-

cies in the newsletters he prepared as chair of the associa-

tion. He cannot now be punished under the Fair Housing

Act or any other law for such political speech merely be-

cause his views were offensive or discriminatory.

IRAC

Sentence

A

C

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One-Sequence

IRAC

B. Defendant Did Not Lose His First Amendment Right

Merely Because the City Was Involved in the Neigh-

borhood Association. Government Officials Have a

First Amendment Right to Debate Public Policy.

The trial court’s ruling that Defendant had no First

Amendment right because he was a government agent was

erroneous.

The right of government officials to express their

opinions on matters of public importance is fundamental

and has been accorded the highest level of First Amendment

protection. See Bond v. Floyd, 385 U.S. 116, 132-33 (1966).

In Bond, . . . [full discussion omitted here].

That government agents retain their First Amendment

right is also clear from case law that restricts the govern-

ment’s ability, as an employer, to punish its employees for

speaking on matters of public concern. See Pickering v. Bd.

of Educ., 391 U.S. 563, 568 (1968) (finding that the idea that

a public employee relinquishes the First Amendment right

to comment on matters of public interest “has been unequiv-

ocally rejected”).

Defendant’s alleged comments at the neighborhood as-

sociation meeting were an expression of opinion in the

course of debating how to improve the neighborhood. De-

fendant did not command, “You must stop renting to

blacks.” Rather, he argued, “If we don’t rent to blacks, we

don’t have the problem.” (1 R. at 99). He was attempting to

convince the other members of the association of his opinion,

and his words are not reasonably susceptible to any other

interpretation. Defendant’s mailings espousing the policies

that plaintiffs claim were discriminatory (1 R. at 4–6) were

similarly persuasive in nature. For example, he writes, “If

you have any kids under 18, you should tell them about the

curfew . . . There are kids that are not in school, and the

parents don’t seem to care. We must correct this problem

for the kids[’] sake.” (1 R. at 110). Similarly, in other in-

stances, he used words that suggest argumentation and per-

A

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IRAC by

Paragraph

suasion rather than a directive, including “propose” (1 R. at

115), “desire” (id.), and “recommend” (1 R. at 120). As held

in the above precedent, Defendant did not lose his right to

advocate for solutions to the crime and sanitation issues fac-

ing his neighborhood merely because he held a leadership

role in the association.

C. Defendant’s Speech Cannot Be Regulated as

Commercial Speech Because His Statements Were Not

Connected to a Commercial Transaction.

The trial court’s alternative ruling that Defendant’s

speech was properly regulated as commercial was also

erroneous. The trial court found Defendant’s speech was

commercial because he “made the[ ]statements as the

owner of investment or income-producing properties to

other such owners in a meeting of an association that was

founded to advance the owners’ interests as owners.” (2 ER

at 300). An economic motive, however, is “clearly insuffi-

cient” to establish speech as commercial. Bolger v. Youngs

Drug Prods. Corp., 463 U.S. 60, 67 (1983).

Defendant’s speech does not fall within the core

definition of commercial speech. To fall within the core

definition, the speech must have the sole purpose of propos-

ing a transaction. Id. at 66–67. Defendant’s speech was

not made to prospective tenants but, rather, was made to

other landlords with whom he had no interest in transact-

ing. Further, neither Defendant’s comments at the October

1998 meeting or the mailings related to a specific commer-

cial transaction. Instead, the comments and mailings were

made in the course of a debate on how to improve the

neighborhood. They do not, therefore, fit within the core

definition of commercial speech.

Nor do any other factors bring his speech within the

commercial speech doctrine. Where speech does not fit the

core definition of commercial speech, economic motivation

together with other factors, including whether the speech is

in the form of an advertisement and whether it references a

specific product, can nonetheless characterize it as

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Narrative

IRAC

Sentence

I


commercial. Id. at 66–67. However, neither of these other

factors applies to Defendant’s speech. Defendant was not

advertising his property and did not make any representa-

tions about it. There is, therefore, no support for the trial

court’s conclusion that his right to free speech was dimin-

ished because his speech was commercial.

The trial court’s reliance on Harris v. Itzhaki, 183 F.3d

1043 (9th Cir. 1999) was misplaced. True, Harris did allow

a Fair Housing Act claim based on the comments of a

property manager. Id. at 1054. However, the Defendants

in Harris did not raise a First Amendment privilege. Their

speech was clearly commercial. In Harris, the property

manager’s statement that the apartment owners “don’t

want to rent to blacks” was made in the context of a

conversation between the manager and the groundskeeper

regarding a particular vacancy in the building. Id. at 1048.

Because Defendant’s comments were not made in connec-

tion with a particular vacancy, Harris is inapplicable.

The manner in which Plaintiffs seek to invoke the Fair

Housing Act directly violates the bedrock principle that all

citizens have a right to engage in public debate on political

questions. See Bond, 385 U.S. at 135–36 (government

agents must be given the “widest latitude” to express their

views). The trial court’s order should be reversed.51

III. SOME NOTES FOR LEGAL WRITING TEACHERS

Legal writing professors who want to encourage creativity

and self-reliance in their students are often reluctant to offer a

one-size-fits-all paradigm or even a sample brief or memorandum

out of fear that students will slavishly copy aspects of the

51. For more samples of integrated briefs, see CLARY & LYSAGHT, supra note 8, at 200–

05; OATES & ENQUIST, supra note 12, at 121–25, 498–07; PARRISH & YOKOYAMA, supra

note 13, at 152–56 (primarily using an IRAC by paragraph structure but with some IRAC

sentences and a narrative included); RAMBO & PFLAUM, supra note 3, at 604–16 (primarily

using an IRAC by paragraph structure but with some IRAC sentences and narratives

included); SHAPO ET AL., supra note 8, at 580–85; SLOCUM, supra note 8, at 590–93.

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Conclusion

A

IRAC

Sentence

A


paradigm or sample that do not make sense in a particular situa-

tion.52 Yet other scholars have concluded that paradigms and

samples offer significant benefits to novice writers.53 By present-

ing students with a variety of models and corresponding samples

and some guidance about how to select between them, legal

writing professors can achieve a good balance between providing

novice legal writers with the help they need while encouraging

creativity and self-reliance.54

With adequate instruction, upper-level students who have

already taken a legal writing course can likely absorb the

organizational choices as adaptations of the IRAC paradigm.

However, presenting all of the structural choices at once is likely

to be overwhelming to first-year law students. For first-year

students, the one-sequence IRAC is a good structure with which

to start because it helps students understand the different

functions of rule explanation and application. It also encourages

rule synthesis because students can more easily see the need for

transitions between each rule paragraph when the rule

paragraphs are kept together. Ideally, each new structure can be

introduced in conjunction with an assignment that helps teach its

costs and benefits. For example, a legal writing course that

requires two legal research memoranda in the fall and a draft

brief and final brief in the spring could gradually introduce the

structures as follows. Students could be taught to use the

one-sequence IRAC in the first assignment after they understand

the basic IRAC paradigm. Then, the second assignment could

involve a factor-balancing analysis that would be a good match for

52. Toni M. Fine, Comments on IRAC, 10 Second Draft, Nov. 1995, at 7, 7–8 (propos-

ing that educators should help students through the process of developing their own

framework for analysis); Jane Kent Gionfriddo, Dangerous! Our Focus Should Be Analysis,

Not Formulas like IRAC, 10 SECOND DRAFT, Nov. 1995, at 2 (proposing a focus away from

paradigms and toward “demystifying [the] inherently challenging process of legal analysis

and its communication”); Venter, supra note 5, at 624–26 (arguing that paradigms are too

limited to allow analytical skills to develop; faculty need to focus more on creative thinking

skills including consideration of audience, context, constraints, and the interests of the

parties); Vorenberg & McCabe, supra note 5, at 17; Warren, supra note 5, at 19 (stating

that IRAC erroneously requires students “to mold printed facts into [a] form-fitted legal

construct” rather than to think about what is really going on in the case).

53. Turner, supra note 1, at 351–52 n.2; see also Judith B. Tracy, I See and I Remem-

ber; I Do and Understand: Teaching Fundamental Structure in Legal Writing Through the

Use of Samples, 21 TOURO L. REV. 297, 308 n.25 (2005) (listing numerous published Arti-

cles that have discussed the importance of samples to student learning in writing courses).

54. Tracy, supra note 53, at 309–13 (advocating for the use of a variety of samples to

teach students about structure while emphasizing the need for flexibility).


the introduction of the alternating structure. Students could then

have the option of choosing between the one-sequence and alter-

nating IRAC structures for that assignment. As students prepare

their draft briefs in the spring, they could be introduced to IRAC

by paragraph. Then, they could be encouraged to incorporate

narratives into their final briefs. IRAC sentences can also be

taught either as an advanced technique or when an appropriate

use arises in the hypotheticals on which students are working.

In addition to taking an incremental approach to the

organizational options, professors should provide students with a

decision tree, checklist, or other decision-making tool that will

help them select the right structure for their particular goals. For

example,


55. A modified version of this checklist and incremental student-oriented instruction

on the IRAC variations are available in TURNER, supra note 7, at 108–50.

For each section of your brief or memorandum, consider which

variation of IRAC best fits the analysis.

The one-sequence structure (IRRRAAAC) is best when the

section:

explains the evolution of the law on a particular issue

(e.g., from an original rule to an exception to limitations on

the exception),

involves a complex issue with many interconnected

considerations, or

would result in repetition in one of the other structures

because the applications would involve the same facts.

The alternating IRAC structure (IRARARAC) or the IRAC by

paragraph (IRAIRAIRAC) structures:

work well if your analysis involves balancing factors

because they enable you to weigh the factors more easily

and

may be particularly beneficial if

o some of the factors suggesting conflicting results in

your client’s case or

o if you are writing a brief and want to deemphasize

the factors that weigh against your client.

When choosing between the alternating IRAC structure and the

IRAC by paragraph structure, consider paragraph length:

IRAC by paragraph can sometimes lead to overly long

paragraphs while the alternating structure can some

times lead to overly short paragraphs.

Your choice should therefore depend on the complexity of

your rule discussions.55


IV. CONCLUSION

Many legal writing professors teach specific structures

because they are helpful for novice legal writers.56 The one-

sequence structure, for example, reminds legal writers that they

need to synthesize the law for the reader and arms them with the

power of the syllogism. However, a seasoned lawyer knows that

the practice of law requires flexibility because the universe of

legal issues and fact patterns is expansive and diverse. This

Article attempts to bridge the gap between the typical first-year

legal writing course taught in law school and the flexibility that

practice demands by describing some modifications of IRAC that

can produce more strategic and engaging writing. I have often

heard my students complain that what we teach does not seem to

be the way that lawyers write. In the past, I have responded that

I want them to be great legal writers rather than average legal

writers. Many lawyers may write entire briefs consisting solely of

IRAC sentences just as many airline pilots may be texting while

computers fly their planes. The existence of the practice does not

make it a good idea. However, after seeing the modifications of

IRAC described in this Article at work in numerous samples in

legal writing textbooks and in briefs, I am convinced that they can

lead to better writing.

I have been introducing the modifications to my students for

the past two years using the incremental approach described

above. I spend a little class time on the alternating IRAC

structure when I introduce it in the second half of the fall

semester. I do not tend to spend class time on the more advanced

structures but, instead, assign reading on those structures from

my textbook. A significant number of students have used the

alternating IRAC structure effectively. A smaller number have

used narratives and IRAC by paragraph but with great success.

The faculty advisor of our moot court team has told me that the

IRAC modifications are helpful to transitioning students from the

first-year course to moot court brief writing: rigidly IRAC-ed

briefs do not tend to win competitions. Finally, I feel personally

satisfied that I am not teaching only one rigid form of IRAC but

am at least exposing students to the flexibility of IRAC and the

need to vary structure to fit their circumstances.

56. See Turner, supra note 1, at 351–52 n.2.

Documents

FLEXIBLE IRAC: A BEST PRACTICES GUIDE - LWI · PDF file2015 Flexible IRAC 235 As legal writing scholars have struggled with how to advise stu-dents to apply IRAC in more complex analyses,